CHAPTER 5 What Is Copyrighted? Chapter Contents § 5.01 Subject Matter of Copyright [1] General Scope of Subject Matter [2] The Idea/Expression Dichotomy [a] The Basic Doctrine [b] Underlying Policies [c] The "Levels of Abstraction" Test [d] Merger of Idea and Expression [3] Assessing Infringement: Access and Substantial Similarity § 5.02 Special Categories of Copyrighted Subject Matter [1] Computer Programs [a] The 1980 Software Amendments [b] Case Law [c] Computer-Generated Works [2] Compilations and Databases [a] Compilations of Data as Copyrighted Works [b] The Theoretical Basis of Compilation Copyrights: "Sweat of the Brow" Doctrine Rejected [c] Copyright Protection for Random-Access Databases [i] Copying the Arrangement [ii] Copying the Selection [d] Toward a Theory of Database Protection [i] The Numbers Approach [ii] The Categories Approach [iii] Congruency of Markets [iv] An Economic Approach [v] Conclusion: The Statutory Approach [3] Useful Articles [a] Ornamental Aspects of Useful Articles [b] Pictures of Useful Articles [c] Plans, Drawings, and Models for Useful Articles [i] Eligibility of Plans, Drawings, and Models for Copyright Protection [ii] Limits on Protection [4] Architecture [a] The Separate Legal Regime for Building De- signs [b] Subject Matter Covered: Building Designs [c] Limitations on Copyright Protection for Building Designs [d] Prospectivity of Protection § 5.03 Prerequisites for Copyright Protection: Fixation, Originality, and Creativity [1] Fixation [a] New Technology [b] Communicative Function [c] What "Fixation" Means [i] Author's Authorization [ii] Tangible Medium and Permanence [d] Fixation and Interactive Systems [e] Fixation and Copyright Preemption [2] Originality [3] Creativity [4] What Copyright Does Not Require [a] The Difference Between Copyright and Patent Standards [b] Content and Copyright Protection § 5.01 Subject Matter of Copyright Patents and trade secrets may protect concepts in the broad sense. Almost any concept may be the subject of a patent if it has functional utility and meets the other high standards for patentability.1 Similarly, virtually any information or idea may qualify for trade secret protection, as long as it has limited availability, derives economic value from its secrecy, and is properly guarded.2 1 See § 2.03 supra. There are limitations, however. Patents are not available for such things as fundamental principles of science and mathematics, mathematical formulae, algorithms, and new business ideas—at least not in their abstract forms, divorced from specific devices or methods used to implement them. See § 2.02[2] supra. 2 See §§ 4.02[1], 4.03 supra. In contrast, copyright does not protect "ideas" or "facts" at all, but only the form of expression of ideas or facts in a particular work of authorship.3 The dichotomy between idea and expression, which is fundamental to copyright law, distinguishes copyrights from other forms of intellectual property. Copyright does not prevent anyone from copying the ideas or facts contained in a copyrighted work, or from describing in different words any real-life event that the work portrays.4 However, copyright does protect an author's original expression. As its name suggests, copyright prohibits unauthorized copying and cer- tain similar acts. It does not protect an author against independent creation of the same expression, and proof of independent creation is a complete defense to a claim of copyright infringement.5 Subject to this basic limitation, how- ever, copyright provides broad and commercially useful protection for various forms of artistic, creative, and intellectual expression. [1]—General Scope of Subject Matter Although in theory both the Copyright Clause of the United States Con- stitution6 and the language of the copyright statute limit the scope of copy- right protection, in practice the courts interpret both broadly. The Copyright Clause empowers Congress to protect the "writings" of "authors,"7 and the courts have construed these terms broadly.8 According to the Supreme Court, a "writing" may include "any physical rendering of the fruits of creative intel- lectual or aesthetic labor."9 3 See § 5.01[2] infra. 4 See id. 5 See, e.g.: Supreme Court: Mazer v. Stein, 347 U.S. 201, 218, 74 S.Ct. 460, 98 L.Ed. 630 (1954) ("Ab- sent copying there can be no infringement of copyright") (Footnote omitted.); Bleistein v. Don- aldson Lithographing Co., 188 U.S. 239, 249, 23 S.Ct. 298, 47 L.Ed. 460 (1903) ("Others are free to copy the original. They are not free to copy the copy"). Second Circuit: Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936) (dictum: independent creation of Keat's "Ode on a Grecian Urn" would merit separate copy- right protection). 6 U.S. Const., Art. I, § 8, cl. 8. 7 Id. The Clause gives Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their re- spective Writings and Discoveries ..." See also, §§ 1.08[1], 2.01 supra. 8 See, e.g.: Supreme Court: Goldstein v. California, 412 U.S. 546, 561, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973) ("The terms ['writings' and 'authors'] have not been construed in their narrow literal sense but, rather, with the reach necessary to reflect the broad scope of constitutional princi- ples"); 412 U.S. at 562 ("[sound] recordings of artistic performances may be within the reach" of Copyright Clause); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-58, 4 S.Ct. 279, 28 L.Ed. 349 (1884) (Constitution authorizes copyright of photographs). Second Circuit: Reiss v. National Quotation Bureau, Inc., 276 F. 717, 719 (S.D.N.Y. 1921) ("writings" include book of nonsense syllables intended for use in preparing secret telegraphic codes; Constitution is "not a strait-jacket, but a charter for a living people"). The patent branch of the Copyright Clause enjoys an equally broad interpretation. See § 2.02[1][a] supra. 9 Goldstein v. California, 412 U.S. 546, 561, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). In adopting the Copyright Act of 1976,10 Congress made clear that it did not intend to exhaust its constitutional power under the Copyright Clause. Instead of using the phrase "all the writings of an author," as it had done in the Copyright Act of 1909,11 Congress used the somewhat narrower phrase "original works of authorship."12 Its purpose in choosing this narrower phrase was to avoid giving the courts "the alternative of holding copy- rightable something that Congress clearly did not intend to protect, or of holding constitutionally incapable of copyright something that Congress might one day want to protect."13 In this way Congress sought to reserve for itself some constitutional power to expand the scope of copyright protection in the future.14 Section 102(a) of the Copyright Act of 1976 describes the subject matter of copyright in broad, general terms: "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or 10 Publ. L. No. 94-553, 90 Stat. 2541 (Oct. 19, 1976), codified in Title 17 U.S.C. This is the current copyright statute; it replaced in its entirety the Copyright Act of 1909, Pub. L. No. 60- 349, 35 Stat. 1075 (Mar. 4, 1909). The 1976 Act took effect generally on January 1, 1978, although a few provisions took effect upon enactment. See Pub. L. No. 94-553, §§ 102, 103, 90 Stat. 2541, 2598-2599 (Oct. 19, 1976). The copyright revision that culminated in the 1976 Act took over twenty years. For brief ju- dicial histories of the effort, see: Mills Music, Inc. v. Snyder, 469 U.S. 153, 159-61, 105 S.Ct. 638, 83 L.Ed.2d 556 (1985); Sony Corp. of America v. Universal City Studios, Inc. 464 U.S. 417, 462-63 n.9, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (Blackmun, J., dissenting). A House report on the revision effort contains a complete section-by-section analysis of the statute. See H.R. Rep. No. 1476, 94th Cong., 2d Sess. (Sept. 3, 1976), reprinted in 1976 U.S. Code Cong. & Admin. News 5659. Other useful sources of legislative history include the Con- ference Report, H.R. Rep. No. 1733, 94th Cong., 2d Sess. (Sept. 29, 1976), reprinted in 1976 U.S. Code Cong. & Admin. News 5810, and an early Senate report on a predecessor bill, S. Rep. No. 473, 94th Cong., 1st Sess. (Nov. 20, 1975). The Conference Report contains no section-by-section analysis. It addressed only the fol- lowing topics: copyright protection for U.S. government publications, fair use, reproduction by libraries and archives, photocopying for interlibrary loans, limitations on performance and display rights, secondary transmissions (including cable television), exclusive rights in sound recordings, the statutory compulsory license for phonorecords, noncommercial broadcasting, federal preemption, deposit of radio and television programs, remedies for infringement, the "manufacturing clause," protection of ornamental designs for useful articles, and the Copyright Office and Copyright Royalty Tribunal. The Senate report addressed an earlier version of the copyright bill, which differed in a number of respects from the statute that Congress adopted. The House Report adopted much of the language of the Senate Report verbatim. Consequently, the House Report is the best general source of legislative history for the 1976 Act. 11 See Pub. L. No. 60-349, § 4, 35 Stat. 1075, 1076 (1909), codified at 17 U.S.C. § 4 (1970) ("The works for which copyright may be secured under this title include all the writings of an author"). 12 17 U.S.C. § 102(a). 13 See H.R. Rep. No. 1476, 94th Cong., 2d Sess.